What is Contained in the Migration Bill That Could Affect 80,000 Non-Citizens?

A view of an immigration detention center in Christmas Island, Australia, on Feb, 29, 2012. Paula Bronstein/Getty Images

Australia’s Home Affairs Department has faced scrutiny about migration bill amendments that could lead to the potential deportation of around 80,000 non-citizens in the country.

This comes as the Coalition on Nov. 25 said it would be backing the Migration Amendment Bill 2024, which is aimed at filling security loopholes caused by a landmark decision by the High Court in November 2023.

At the time, the court ruled that it was unlawful to keep asylum seekers in indefinite detention.

The ruling resulted in the release of over 200 detainees into the community, many of whom were later charged with committing new serious offences, including murder, domestic violence and sexual assault.

Changes Under New Migration Bill

Under the new migration legislation (pdf), the home affairs minister has the power to revoke the visa of a person holding a subclass 070 Bridging (Removal Pending) Visa (BVR), if a third country is willing to let the person enter and remain.

The BVR allows non-Australian citizens to temporarily stay in the community until their removal process is completed.

The new bill would also make it easier for the Department to deport unlawful non-citizens by removing some of their protections.

Furthermore, the legislation will provide immunity to Home Affairs officials carrying out their duty and allows the Australian government to pay third countries to accept the individuals.

Removing Non-Citizens to be Easier: Secretary

During a recent inquiry, Home Affairs Secretary Stephanie Foster said the new bill helped remove impediments for deporting unlawful non-citizens.

“This actually assists us in exercising our obligations under the Migration Act, and finally, it assists us in the management of the BVR cohort,” she told the Legal and Constitutional Affairs Legislation Committee.

“This is all about enabling us to give effect to our obligation under the Migration Act to remove people who no longer have a right to stay in Australia.

“The capacity to do that is critical to the effective management of a migration system.”

The secretary also noted that the bill did not expand the cohort of people who were eligible for removal nor change the protections established by the Migration Act for non-citizens to whom Australia owed protection.

“The bill does not change Australia’s commitment to complying with its international law obligations,” she said.

“Individuals who face a fear of persecution or harm in another country are able to apply for a protection visa.”

How 80,000 People Could Face Deportation

When asked by Greens Senator David Shoebridge to provide a breakdown of the number of people who could be affected by the new provisions in the bill, Michael Thomas, a Home Affairs representative, revealed there were 75,400 unlawful non-citizens in Australia as of June 30, 2024.

He added that as of Nov. 15, 2024, 4,452 people were on bridging visa E under departure arrangements, 986 were in immigration detention, and 193 were in community detention.

Also included were 246 people on BVR after the High Court’s 2023 decision and 96 people on BVR before the decision.

Shoebridge then questioned why the bill could affect more people than what the government previously said.

“We’ve had the government say that this would have played up to hundreds of people, but in actual fact, it’s more than 80,000 people who this legislation could apply to. That’s somewhat more than a few hundred, isn’t it?” the senator asked.

“When [Assistant Immigration] Minister [Matt] Thistlethwaite claimed that this law would only impact criminals, that was just plainly untrue, wasn’t it?”

In response, a Home Affairs representative said the above figures referred to the people for whom potentially the duty to remove had arisen. Section 198 of the Migration Act required officials to deport unlawful non-citizens to their home countries if there was no protection finding.

Thomas also added that many unlawful non-citizens departed on their own accord.

“That number I gave you could be people unlawful in the community for 10 minutes, for a couple of days after their visa has expired. So a large number of those people will depart,” he said.

Shoebridge then questioned whether the Department had informed the ministers about the bill’s impacts on 80,000 people but did not receive a direct answer.

No Limitations on Destinations

Shoebridge asked whether there were any limitations on the countries to which Australia could send non-citizens, such as the requirement that they be parties to the Refugee Convention.

Clare Sharp, a general legal counsel at the Department, said the bill did not establish any limitations.

“If this legislation is passed, the government could enter into an arrangement with Papua New Guinea, Nauru, Iran, China, Russia. There are no limitations. Is that right?” Shoebridge questioned.

Foster did not answer directly but said there was a “long-standing” bipartisan commitment to meeting Australia’s international obligations.